Case: 21-40028 Document: 00516165774 Page: 1 Date Filed: 01/13/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 13, 2022
No. 21-40028 Lyle W. Cayce
Clerk
Carla Frew; Charlotte Garvin, as next friend of her
minor children Johnny Martinez, Brooklyn Garvin and
BreAnna Garvin; Class Members; Nicole Carroll, Class
Representative; Maria Ayala, as next friend of her
minor children, Christopher Arizola, Leonard Jimenez,
and Joseph Veliz; Mary Jane Garza, as next friend of
her minor children, Hilary Garza and Sarah Renea
Garza,
Plaintiffs—Appellants,
Versus
Cecile Young; John William Hellerstedt, M.D.,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 3:93-CV-65
Before Stewart, Haynes, and Graves, Circuit Judges.
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James E. Graves, Jr., Circuit Judge:*
This is the latest appeal in the long-running litigation over Texas’
administration of its Medicaid Early and Periodic Screening, Diagnosis, and
Treatment program (“EPSDT”). Plaintiffs represent a class of some 1.5
million Texas children eligible for EPSDT services. In 1996, they entered a
Consent Decree with various Texas state officials aimed at improving Texas’
implementation of its statutory obligations under the Medicaid statute. In
2007, facing multiple enforcement motions from the plaintiffs, Texas further
agreed to an eleven-part “Corrective Action Order” (“CAO”) aimed at
bringing Texas into compliance with the Consent Decree. The district
court’s eventual dissolution of some of those CAOs has been the subject of
two appeals before this court. See Frew v. Janek, 820 F.3d 715, 718 (5th Cir.
2016); Frew v. Janek, 780 F.3d 320 (5th Cir. 2015). This appeal arises from
the district court’s termination of the CAOs and Decree provisions
governing the State’s outreach obligations. Because we agree with the district
court that the State is entitled to relief under rule 60(b)(5), we AFFIRM.
I.
In 1993, plaintiffs as representatives of a class of indigent children
eligible for EPSDT services sued various Texas officials under 42 U.S.C.
§ 1983 for violations of federal Medicaid law. This resulted in a 78–page
consent decree. 1 In 1998, the district court granted the plaintiffs’ motion to
enforce the Consent Decree in a lengthy order detailing the State’s non-
compliance. Although we vacated the district court’s decision as violative of
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
1
A more detailed factual background can be found in this court’s numerous
previous decisions in this case. See Frew v. Janek, 820 F.3d 715, 718 (5th Cir. 2016); Frew v.
Janek, 780 F.3d 320 (5th Cir. 2015); Frazar v. Ladd, 457 F.3d 432 (5th Cir. 2006); Frazar
v. Hawkins, 376 F.3d 444 (5th Cir. 2004); Frazar v. Gilbert, 300 F.3d 530 (5th Cir. 2002),
rev’d sub nom. Frew ex rel. Frew v. Hawkins, 540 U.S. 431 (2004).
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the State’s Eleventh Amendment immunity, the Supreme Court reversed.
See Frew ex rel. Frew v. Hawkins, 540 U.S. 431 (2004). In 2005, defendants
moved to dissolve the Decree in its entirety under rule 60(b)(5). The district
court denied that motion, and we affirmed. Frazar v. Ladd, 457 F.3d 432 (5th
Cir. 2006)
In 2007, the parties agreed to settle plaintiffs’ various enforcement
motions by supplementing the Decree with the CAOs, entered in eleven
installments by subject matter, all aimed at bringing the State into compliance
with the Decree. Compliance with the CAOs is intended to “provide[] a clear
potential end point for Defendants’ obligations under” each corresponding
part of “the Consent Decree.” In prefacing the CAOs, the district court
stated that it “hopes and expects that by complying with the [CAOs],
Defendants will also comply with the Decree.”
The State has since improved programming in various areas and,
pursuant to the CAOs, the district court has dissolved most or all of six of the
eleven CAOs and their corresponding Decree provisions. The plaintiffs have
generally contested these dissolutions, prompting two published decisions
from this court. In 2015, we affirmed the district court’s ruling and reliance
on rule 60(b)(5)’s first prong, which permits relief when the decree has been
“satisfied, released, or discharged.” Frew v. Janek, 780 F.3d 320, 323 (5th
Cir. 2015) (“Frew III”). That appeal concerned the district court’s
dissolution of the CAO that required the State to “implement an initiative to
effectively inform pharmacists about EPSDT.” Id. at 329. We agreed with
the district court that the Decree’s language for that program guaranteed
plaintiffs certain processes and procedures, but not any specific results. Id. at
329-331. And in 2016, this court affirmed in large part the district court’s
dissolution of the CAO aimed at ensuring class members’ access to an
“adequate supply of health care providers.” Frew v. Janek, 820 F.3d 715, 718
(5th Cir. 2016) (“Frew IV”).
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One of the CAOs addresses the district court’s findings that the State
had not fulfilled its outreach duties under the Decree, which directs the State
to “effectively inform recipients about the EPSDT program.” Those
obligations are set out in the Outreach and Informing CAO (“O&I CAO”);
in Part III of the Managed Care CAO; and in paragraphs 10-74, 95-96, 176-
183, and 193 of the Decree. These obligations are at issue in this appeal.
The parties’ main dispute on appeal centers on the O&I CAO’s first
section, which, as modified in 2009, comprises fifteen paragraphs. It splits
the defendants’ duties into three phases, requiring defendants to first
conduct a study to assess why class members miss checkups, implement five
outreach and informing strategies based on the results of the study, and then
conduct another study of the effectiveness of those strategies. The CAO
defines “effectiveness” as “the impact on checkup participation rates.”
After completing the second study, the parties are required to meet and
confer on whether a “corrective action plan” is necessary. If they agree that
it is, defendants must implement the corrective action and then, later,
conduct a third study on that action’s efficacy. If the parties are unable to
agree on the need for corrective action, the CAO calls for the district court
to resolve the dispute on a motion filed by either party.
In Phase 1, the State had to conduct both a qualitative and a
quantitative assessment. The quantitative assessment must be statistically
valid, asking:
(a) What causes class members to miss medical
checkups, dental checkups and/or follow-up visits?
(b) What are the barriers to receiving medical checkups,
dental checkups and/or follow-up visits?
(c) What can be done to make outreach more effective
at helping families overcome barriers that cause them to miss
medical checkups, dental checkups and/or follow-up visits?
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The O&I CAO ordered the State to give plaintiffs the studies’ results, after
which the plaintiffs would have fifteen days to offer comment, which the
defendants “may accept or reject.”
In Phase 2, the defendants were to implement outreach strategies in
five specified areas (media, “intensive school-based program[s],” “intensive
community-based program[s],” telephone follow-ups after missed
appointments, and mail follow-ups after missed appointments.” Phase 3
directed the State to use an evaluator to analyze and compare the
effectiveness of each of the outreach strategies. “The parties will begin to
confer, no later than 30 days following the completion of Phase 3 to determine
what kind of corrective action plans, if any, Defendants will implement.”
The defendants maintain that they met these obligations. The State
performed a study pursuant to the O&I CAO, implemented the five outreach
strategies that the O&I CAO prescribed, and performed a follow-up study.
But the State took no further corrective action because it deemed that none
was necessary. In 2015, the State asked the district court to vacate the
outreach-and-informing provisions in the Consent Decree and two CAOs.
The State argued in relevant part that it had satisfied those obligations and
thus relief was warranted under rule 60(b)(5)’s first prong. The plaintiffs
opposed the motion, conceding the State’s compliance on only four
paragraphs of the Decree. The State’s evidence in support of the motion
numbered in the thousands of pages.
The district court granted the motion, concluding that the State had
satisfied each of its outreach and information obligations in the Decree and
CAOs. The district court concluded that the defendants commissioned a
statistically valid study and that the O&I CAO did not require the defendants
to meet any specific threshold participation levels in the EPSDT program by
class members. The district court accordingly rejected the plaintiffs’ results-
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based definition of the term “effective,” but the district court nonetheless
determined that the State had “demonstrated that [its] outreach and
informing efforts [we]re effective” under any arguable “interpretation of the
term”—including under the plaintiffs’ proposed results-based definition.
The district court therefore “vacate[d]” the O&I CAO, Section III of the
Managed Care CAO, and ¶¶ 10–74, 95–96, 176–183 and 193 of the Decree
“pursuant to Prong 1 of Rule 60(b)(5) of the Federal Rules of Civil
Procedure.” The plaintiffs timely appealed.
II.
“Rule 60(b)(5) serves a particularly important function in . . .
institutional reform litigation,” as “injunctions issued in such cases often
remain in force for many years, and the passage of time frequently brings
about changed circumstances—changes in the nature of the underlying
problem, changes in governing law or its interpretation by the courts, and
new policy insights—that warrant reexamination of the original judgment.”
Horne v. Flores, 557 U.S. 433, 447–48 (2009) (internal quotation marks and
citations omitted). Courts give rule 60(b)(5) a “liberal construction,”
Johnson Waste Materials v. Marshall, 611 F.2d 593, 600 (5th Cir. 1980), and
“district courts must take a flexible approach to motions to modify consent
decrees and to motions to modify or vacate institutional reform decrees,”
Rufo v. Inmates of Suffolk Cty. Jail, 502 U.S. 367, 379–80, 381 (1992).
Flexibility is “often essential to achieving the goals of reform litigation.” Id.
at 381. The defendants bear the burden of showing that rule 60(b)(5) applies.
Frew III, 780 F.3d at 326–27. This court reviews a district court’s decision to
grant or deny relief under rule 60(b) for abuse of discretion. Frazar, 457 F.3d
at 435. But “[u]nlike some of our sister circuits, this Court does not defer to
a district court’s interpretation of a consent decree. Instead, we review
questions of consent decree interpretation de novo.” Frew IV, 820 F.3d
at 723 (citation omitted).
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In Frew III, we held that the defendants could obtain relief under rule
60(b)(5)’s first prong by demonstrating “substantial compliance” with the
CAO and Decree. “Substantial compliance excuses deviations from a
contract’s provisions that do not severely impair the contractual provision’s
purpose.” Frew III, 780 F.3d at 330 (quoting Interstate Cont. Corp. v. City of
Dallas, 407 F.3d 708, 727 (5th Cir. 2005)). “As the party seeking relief,”
defendants “bear the burden of showing” substantial compliance. Id. “But
in addressing Defendants’ request for relief, this Court must take heed of the
Supreme Court’s admonition that the continued enforcement of the consent
decree poses legitimate federalism concerns.” Frew IV, 820 F.3d at 721.
III.
Before reaching the merits, we clarify the scope of this appeal. The
O&I CAO is comprised of seven sections. The first section is divided into
phases, requiring the State to: (i) commission a statistically valid study to
assess reasons why class members miss checkups; (ii) then implement five
outreach and informing strategies based on the results of the study; and
(iii) then conduct another study of those strategies’ efficacy, and, if
necessary, implement further reforms. The subsequent sections refer to the
defendants’ other responsibilities regarding outreach, such as mailing and
referrals. The district court’s order terminated all seven of these sections, in
addition to the related paragraphs of the Decree. Although the plaintiffs
purport to seek reversal of the order below in its entirety, they offer specific
argument only with respect to the first section, concerning the three-phase,
study-and-improvement process. The plaintiffs have therefore forfeited any
challenge to the district court’s decision to terminate the other six sections
and related paragraphs of the consent decree. United States v. Whitfield, 590
F.3d 325, 346 (5th Cir. 2009) (“As a general rule, a party waives any
argument that it fails to brief on appeal.”). The plaintiffs do not contest in
their reply brief the defendants’ argument to this effect. We examine each of
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the plaintiffs’ assertions in turn, beginning with the plaintiffs’ arguments
regarding the State’s specific procedural obligations, and ending with the
plaintiffs’ more structural arguments.
A.
The plaintiffs first challenge the State’s satisfaction of its obligation to
research and survey the past shortcomings of its EPSDT program. The
plaintiffs argue that the State cannot realistically rectify those shortcomings
without understanding them. The O&I CAO directs the State to “use
independent, unbiased, and statistically valid methodologies to conduct the
assessment of reasons class members miss checkups.” The plaintiffs contend
that the State commissioned an unreliable survey, asserting that the State’s
study “excluded all class members who had been eligible for less than 11
months,” which resulted in the exclusion of “nearly 70% of class members
from participation in the Phase 1 survey.” The plaintiffs offer no citation to
the record to support this assertion.
We find no error in the district court’s decision to credit the State’s
Phase 1 survey. The State’s contractor, Mercer, conducted the study via
focus groups and surveys sent to class members. To generate the list of
survey recipients, Mercer collected “eligibility data and office visit data”
from the State, which data was queried as “Medicaid Class Members aged 0-
21 who were eligible as of August 2009 and who were continuously enrolled
at least 11 months between September 2008 to August 2009.” Plaintiffs seem
to use this search parameter as evidence that the survey fatally excluded new
class members who, they reason, are most in need of outreach. However,
Mercer attested that this data set did not affect the Phase 1 Study, because
Mercer did not base its statistical analysis on this data but rather used it as a
baseline for the Phase 3 study. Instead, the Phase 1 survey ultimately used all
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“Medicaid client members, aged less than 21, who were eligible as of
December 2010.”
Moreover, Mercer sufficiently explained its methodology to satisfy
the State’s obligation to conduct a statistically valid study. Mercer said it
used a multivariable logistic regression model 2 to extrapolate from a
“stratified random sample,” “account[ing] for non-response bias,” and
weighted by age, gender, race, aid category, plan type, and geography.
Mercer explained that “[t]he baseline EPSDT rates [we]re used as outcome
measures to evaluate whether the outreach and informing interventions
improve the rates of medical check-ups, dental check-ups, and follow-up care
at the individual level.” Mercer concluded that controlling for length of
enrollment was the best strategy to isolate the effects of the State’s new
policies, so that the parties could “detect the effects of the intervention at
the individual level.” Mercer further pointed to peer-reviewed studies using
similar methodology in analogous circumstances. The plaintiffs offered no
evidence to contest Mercer’s assertions or the study’s statistical validity.
They quoted instead counsel argument in an interrogatory posed to Mercer,
while neglecting to mention Mercer’s response that “the baseline study
population was defined to maximize the ability of the analysis to detect the
effects of the intervention at the individual level, by controlling for the length
of time in the program.”
Faced with this reasonable explanation of the State’s study, the
plaintiffs offered only counsel argument. The district court in Frew I put the
plaintiffs on notice that it would rely on the State’s unrebutted statistical
evidence. Frew I, 401 F. Supp. 2d at 675 n.99. Further, plaintiffs did not ask
2
Multivariable regression models are used to establish the relationship between a
dependent variable (i.e. an outcome of interest) and more than one independent variable.
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the district court to order the defendants to re-do the study—they missed the
window to contest it—and they base their arguments on the study’s results.
The district court was therefore correct in discounting the plaintiffs’
criticism of the survey, and it did not abuse its discretion in concluding that
the defendants had satisfied the O&I CAO’s instructions for a statistically
valid survey of the reasons class members miss their checkups.
B.
The plaintiffs next argue that the district court’s “refusal to require
Defendants to develop corrective action plans based on the Phase 3 study
renders the study requirement meaningless.” They contend that, when
viewed “as a whole,” the “purpose of the three[-]phase study in the O&I
CAO is to inform the development of corrective action plans.” Although
they acknowledge that the O&I CAO allows for the possibility that no
corrective action would be needed after the Phase 3 study, they argue that the
district court’s “suggest[ion] . . . that [the] corrective action plans were
optional deprives the structure of the O&I CAO of meaning.” The
defendants assert, and the district court held, that because they complied
with the Decree, there was no need for further corrective action.
The district court’s conclusion is reasonable. The O&I CAO orders
the parties to timely confer after the Phase 3 study’s completion to
“determine what kind of corrective action plans, if any, Defendants will
implement.” The O&I CAO thus expressly contemplated that no further
action would be necessary after completion of the three-phase study-and-
improve process. The plaintiffs’ argument thus renders the phrase “if any”
meaningless. The Phase 3 study’s purpose was thus to gauge the defendants’
compliance with the Decree’s outreach provisions. The Phase 3 study
revealed compliance, negating the need for further corrective action. For
example, the study showed improved check-up participation by class
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members: 87% of survey respondents indicated that their knowledge of
EPSDT services was “excellent” or “very good.” That is a marked
improvement from the state of affairs in 2000, when 60% of respondents
reported knowing “very little” or “nothing at all” about the services, Frew
v. Gilbert, 109 F. Supp. 2d at 599. Accordingly, the plaintiffs have not shown
that the district court’s “refusal to require Defendants to develop corrective
action plans based on the study renders the study requirement meaningless.”
C.
The plaintiffs next argue that the defendants’ outreach practices were
necessarily ineffective because they “lack” contact information for “30% of
the class.” The plaintiffs assert that it is impossible for the defendants to
conduct outreach for class members whose contact information they lack.
The district court was correct in rejecting the plaintiffs’ contact-
information argument. The plaintiffs offer no factual or legal citation to
support this argument; they derive the thirty-percent figure from a survey
that the State commissioned pursuant to the O&I CAO. The contractor sent
surveys to 16,611 class members. Some 5,000 of the recipients “were not
eligible to participate . . . due to various reasons including: non-working
phone numbers (2,266), fax number (7), business (69), wrong number (725),
returned mail (2,120), and no Medicaid participant in household (51).” The
contractor apparently gleaned the contact information for the surveys’
recipients from the plaintiffs, which perhaps undermines the plaintiffs’
argument that the 5,000 surveys were returned due to the State’s lack of
diligence.
Regardless, the plaintiffs make no showing that the returned surveys
compromised the statistical validity of the study that relied on the survey
responses. Further, although the plaintiffs contend that the defendants’
inability to contact almost a third of the class necessarily shows the inefficacy
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of the defendants’ outreach efforts, the defendants introduced evidence that
they ultimately were able to contact all but about .29% of the class in their
more recent outreach letters. This overall success is enough to show the
defendants’ substantial compliance with the Decree’s outreach provisions.
See Frew III, 780 F.3d at 330 (“Substantial compliance excuses deviations
from a contract’s provisions that do not severely impair the contractual
provision’s purpose.”).
IV.
The plaintiffs’ primary argument on appeal is that the district court
used the wrong standard in evaluating the defendants’ compliance with the
decree. There is little real dispute that the State generally complied with most
of its procedural obligations under the Decree. In the district court, the State
presented thousands of pages of evidence supporting its compliance with the
Decree and the O&I CAO’s procedural mandates. The plaintiffs did not
refute this evidence, but instead resisted the defendants’ motion because the
State’s efforts did not produce a sufficient uptick in EPSDT participation
rates. The plaintiffs’ main contention on appeal is that “Defendants have not
shown through any of the agreed metrics that their efforts are ‘effective’ and
have refused to take corrective actions to improve their outreach and
informing efforts or conduct a second study.” To support this position, the
plaintiffs point to the Decree’s language prefacing the outreach and
informing obligations: “The parties agree to and the Court orders the
following changes to the Texas EPSDT program, policies and procedures to
effectively inform recipients about the EPSDT program.” According to the
plaintiffs, the Decree’s use of the term “effectively” requires threshold real-
world improvements in participation in the EPSDT program, and thus the
defendants’ compliance with the Decree’s procedural mandates is
insufficient to merit rule 60(b)(5) relief without greater improvement in
participation rates.
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Our 2015 decision in Frew III disposes of this argument. There,
plaintiffs had appealed the district court’s termination of the Decree
provisions and a CAO “concern[ing] deficiencies in Medicaid-participating
pharmacies’ understanding of EPSDT.” 780 F.3d at 324. The Decree, using
language almost identical to the language at issue in this appeal, directed the
State to “implement an initiative to effectively inform pharmacists about
EPSDT.” Id. at 328-29. The plaintiffs had argued that “the district court
erred in focusing narrowly on Defendants’ satisfaction of specific provisions
. . . and not considering the Decree’s broader goals.” Id. at 328. Plaintiffs
specifically asserted that “[t]he purpose of the Decree . . . is results-oriented:
It is not enough for Defendants to perform the required action items
mechanically; the court must also find that these actions were effective in
improving EPSDT recipients’ access to health care.” Id. In addition to the
provision ordering “effective[]” outreach to pharmacists, the plaintiffs
pointed to the Decree’s language introducing the agreed-upon procedures as
meant “[t]o address the parties’ concerns, to enhance recipients’ access to
health care, and to foster the improved use of health care services by Texas
EPSDT recipients.” 780 F.3d at 328.
There, as here, the plaintiffs argued that the Decree and CAOs are
results-oriented and therefore the defendants’ fulfillment of their obligations
depended on showing increased effectiveness. We held, however, that
“[t]hese introductory paragraphs do not guarantee specific outcomes; rather,
they show that the Decree is aimed at supporting EPSDT recipients in
obtaining the health care services they are entitled to, by addressing concerns,
enhancing access, and fostering use of services.” Id. (emphasis in original).
The Decree is intended to establish a roadmap for achieving better EPSDT
services, but the Decree “makes no guarantees of success and sets no results-
based milestones.” Id. at 329. To the extent that the Decree and CAO used
the word “effective,” those terms were geared towards specific procedures,
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but did not guarantee any result in the quality and quantity of EPSDT
services. Id. Otherwise, there would be no “end-point” for the Decree. Id.
The pharmacy provisions at issue in Frew III are quite similar to the
outreach provisions at issue in this appeal. The Decree’s relevant
introductory paragraph explains why outreach is “important,” but nowhere
does it require any specific operational outcome. Nor does the Decree’s
paragraph 11, which, in language nearly identical to that at issue in Frew III,
“orders the following changes to the Texas EPSDT program, policies and
procedures to effectively inform recipients about the EPSDT program.”
Those changes include the detailed outreach and informing provisions at
issue in this appeal. Like in Frew III, paragraph 11 describes the goal as
effective outreach, but it does not “explicitly guarantee[]” a particular result
“or set termination conditions referencing satisfaction” of that animating
goal. Frew III, 780 F.3d at 330. In short, it “order[s] the . . . changes” that
“follow[]” in later paragraphs, rather than any specific result in
participation. The State’s compliance with the Decree is measured in how
closely it follows the Decree’s policy mandates, not in the real-world effect
of such policies.
In addition to comporting with our law of this case, the defendants’
position also finds more support in the Decree’s language. The Decree and
O&I CAO are chock full of mandatory provisions, rendering conspicuous the
absence of any mandated efficacy threshold. For example, the Decree: spends
a dozen pages specifying the content, language, and timing of outreach
literature; orders the defendants to change the name of its EPSDT program;
orders the defendants to create a new format for class members’ medical
identification cards; mandates conversation topics between “eligibility
workers” and class members; orders the establishment of “outreach units”
that are “responsible for oral outreach in a geographic area of Texas,” and
defines those units’ responsibilities, staffing, and management; orders the
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defendants to communicate and coordinate with other state agencies to enlist
their help with the EPSDT program; and directs the methodologies and
policies for a pilot outreach program for migrant farmworkers’ children in the
Rio Grande Valley. The O&I CAO similarly: orders the defendants to
implement outreach in five media and specifies the content of each outreach
medium; directs the commission and defines the methodologies of a study of
the efficacy of the defendants’ efforts in those media, specifying the vendors
from which the State may solicit bids to conduct the study and the content of
the contract with the selected vendor; and defines the content and timing for
mailers to class members who miss check-ups. Given the mandatory
obligations’ exacting specificity, conspicuously absent is any language
suggesting that the defendants’ compliance with the Decree and O&I CAO
depends on any threshold participation levels by class members.
The plaintiffs note that, over this case’s long history, the district court
and the defendants have used varying definitions of the term “effective,”
some of which are not inconsistent with the definition the plaintiffs now
propose. However, it is the Decree that is at issue in defining “effective,”
rather than the CAO. See Texas v. Am. Tobacco Co., 463 F.3d 399, 407 (5th
Cir. 2006) (“Under Texas law, . . . a contract is viewed as of the time it was
made and not in light of subsequent events.”). The parties’ understanding of
the word “effective” when they negotiated the CAOs, some thirteen years
after the Decree’s entry, has little bearing on the Decree’s meaning. Most
importantly, this court’s interpretation of the Decree governs, and that
interpretation favors the State. Frew III, 780 F.3d at 326 (“The only decisions
that form the law of this case are the Supreme Court’s opinion in Frew [] and
our previous panel opinions.”). Accordingly, we conclude that the Decree
“do[es] not guarantee specific outcomes,” but rather “establish[es] a clearly
defined roadmap for attempting to achieve the Decree’s purpose.” Id. at 328.
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V.
The plaintiffs next assert more broadly that the district court
incorrectly required them to show that the Decree should be preserved,
instead of requiring the State to justify the Decree’s termination. They argue
for example that the district court “required” them to show that the studies
were methodologically unsound “rather than requiring Defendants to
demonstrate they complied with the requirement of an independent study or
even the[ ]absence of harm.” However, it is more accurate to say that the
district court first considered whether the defendants had made a prima facie
case for relief. Only after concluding that the defendants had done so did the
district court ask whether the plaintiffs had rebutted that prima facie case.
For example, in evaluating the defendants’ compliance with the Decree, the
district court said that the defendants had “demonstrated that their outreach
and informing efforts are effective,” while the “Plaintiffs have not defeated
Defendants’ showing that Defendants have substantially complied with their
obligations under” the Decree’s outreach-and-informing provisions. For
that reason, the district court on several issues noted that the defendants’
evidence was “unrebutted.”
We have found only one instance in which the district court appears
to have placed the initial burden on the plaintiffs, and the plaintiffs point to
no other examples. In response to the defendants’ motion to dissolve the
Decree and CAO’s outreach and informing provisions, the plaintiffs argued
that the defendants were violating the Decree and asked the district court to
order another corrective action plan. In evaluating the plaintiffs’ request, the
district court expressly stated that the plaintiffs “bear the burden of showing
that Defendants have violated additional Decree provisions.” But that was a
correct statement of the law; the proponent of rule 60(b) relief bears the
burden of showing entitlement. See League of United Latin Am. Citizens, Dist.
19 v. City of Boerne, 659 F.3d 421, 438 (5th Cir. 2011); Foster v. Centrex Capital
16
Case: 21-40028 Document: 00516165774 Page: 17 Date Filed: 01/13/2022
No. 21-40028
Corp., 80 S.W.3d 140, 143 (Tex. App.-Austin 2002, pet. denied) (noting that
the party alleging breach of contract bears the burden of proof).
VI.
Last, the plaintiffs argue that the district court should have awarded
relief under rule 60(b)(5)’s third prong—the equitable relief provision—
rather than the rule’s first prong. They assert that the Supreme Court and
this court have held in this case that relief from the Decree’s provisions “is
governed by the equitable clause of Rule 60(b)(5).” They argue that the
equitable clause “capture[s]” the “appropriate contours of equity and
federalism.” It is unclear where the plaintiffs derive their argument that
prong-1 relief is unavailable in this case, as this court has twice affirmed the
district court’s use of rule 60(b)(5)’s first prong in two earlier appeals. See
Frew III, 780 F.3d at 327 (examining “the first clause of Rule 60(b)(5)); Frew
IV, 820 F.3d at 720 (“We now address the district court’s prong 1
findings.”). Accordingly, the plaintiffs’ argument lacks merit. 3
Having found no error in the district court’s order, we AFFIRM.
3
The plaintiffs also argue that the district court erred “by ‘vacating’ the [O&I]
CAO and related Consent Decree provisions rather than ‘terminating’ those provisions as
mandated by prior court orders.” The plaintiffs, however, did not make this argument
below, and they have used the term “vacate” in joint motions before the district court. The
plaintiffs therefore have forfeited this argument. United States v. Bowen, 818 F.3d 179, 192
n.8 (5th Cir. 2016) (per curiam).
17